In advance of the first status conference scheduled in the recently consolidated federal Mirena IUD litigation, a request has been filed to appoint a group of plaintiffs’ attorneys to serve in various leadership roles in the MDL (Multidistrict Litigation).

Last month, the U.S. Judicial Panel on Multidistrict Litigation (JPML) ordered that all lawsuits filed throughout the federal court system involving complications from Mirena IUD birth control will be transferred to U.S. District Judge Cathy Seibel in the Southern District of New York for coordinated handling during pretrial proceedings.

Last week, a request was been made on behalf of the plaintiffs for Judge Seibel to appoint three individual attorneys to serve as Co-Lead Counsel and for an additional lawyer to serve Liaison Counsel in the Mirena MDL.

These attorneys would take certain actions throughout the litigation on behalf of all plaintiffs who have brought a lawsuit. The request indicated that making the appointments before the scheduled conference would allow the parties to meet in advance and negotiate on issues surrounding the structure of the MDL.

In an Order (PDF) issued on May 3, Judge Seibel requested additional information about whether the proposal represents a consensus of all Plaintiffs’ counsel and whether any other plaintiffs have objected to this proposal or wish to make alternative proposals. Additional information was also requested about how the responsibilities and authority would be divided among the three Mirena IUD attorneys seeking to serve as Co-Lead Counsel and why a Plaintiffs’ Steering Committee and Plaintiffs’ Executive Committee would also be necessary.

Judge Seible also asked for a description of the proposed compensation arrangements for these Co-Lead Counsels and Liaison Counsel, and for certificates of good standings in the courts where they are permitted to practice.

Mirena IUD Birth Control Litigation

The Mirena litigation was consolidated in the federal court system to reduce duplicative discovery, avoid inconsistent rulings from different judges and to serve the convenience of the witnesses, the parties and the courts.

Such consolidation is common in complex pharmaceutical claims where a large number of lawsuits have been filed involving similar injuries allegedly caused by the same medication or medical device.

Mirena is a long-acting form of birth control manufactured by Bayer Healthcare, which involves a T-shaped plastic device that is implanted into the uterus to prevent pregnancy. Although the Mirena warning label indicates that there is a risk of perforation at the time of insertion, the lawsuits allege that Bayer failed to adequately warn about the risk of “spontaneous” migrations, where the device can move long after implanted, causing severe internal damage, infections and other injuries.

As part of the centralized proceedings in the federal court system, it is expected that a small group of cases will be prepared for early trial dates, known as “bellwether” trials because they are designed to help the parties gauge how juries are likely to respond to certain evidence and testimony that will be repeated throughout the litigation. The outcome of such early trial dates may ultimately help promote a Mirena settlement agreement or other resolution for the litigation.

During the MDL proceedings, it is common practice for a small group of lawyers to be appointed to various leadership roles, charged with conducting discovery, taking depositions and presenting arguments to the court that are for the benefit of all plaintiffs involved in the litigation. However, ultimately if the cases do not resolve during the MDL proceedings, each individual lawsuit may be remanded back to the court where it was filed for a separate trial date lead by the lawyer who brought the lawsuit.